Citation Nr: 0608379
Decision Date: 03/23/06 Archive Date: 04/04/06
DOCKET NO. 04-17 360 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
2. Whether new and material evidence, sufficient to reopen a
claim of entitlement to service connection for an acquired
psychiatric disorder other than PTSD, has been received.
3. Entitlement to service connection for hepatitis C.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
C. Kedem, Counsel
INTRODUCTION
The veteran had active duty service from June 1980 to
February 1981.
This matter comes to the Board of Veterans' Appeals (Board)
from a September 2003 rating decision of the RO.
In the currently appealed September 2003 decision, the RO
denied service connection for hepatitis C and PTSD only.
However, in the March 2004 statement of the case, the RO
expanded the issue to encompass other acquired psychiatric
conditions. Specifically, the RO characterized the issue as
"service connection for a psychiatric condition, to include
PTSD, and as by aggravation." However, the RO has already
denied service connection for "nervous conditions" by May
1987 rating decision and denied service connection for
stress/mental disorder by August 1992 determination. The
veteran did not initiate appeals regarding these rating
decisions, and they became final. See 38 C.F.R. §§ 20.200,
20.201, 20.202, 20.302, 20.1103 (2005) (detailing the
procedures and time limitations for appealing adverse RO
rulings to the Board and the finality of RO determinations
that are not timely appealed). Finally decided claims can
only be reopened by the submission of new and material
evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156
(2005).
Thus, the Board has characterized that portion of veteran's
psychiatric disorder claim (i.e. disorders other than PTSD)
as a new and material evidence issue.
In January 2006, a videoconference hearing was held before
the undersigned.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
Regarding the matter of hepatitis C, the veteran has
indicated treatment at the Pittsburgh VA Medical Center (MC)
in the past three or four years. Because he is uncertain of
the dates of treatment, the RO must obtain records from the
Pittsburgh VAMC dated from January 1, 2000 to the present.
Regarding the veteran's psychiatric claim, at his January
2006 hearing, he has indicated treatment by A. Parikh, M.D.
in Fairlawn, Ohio. Treatment records from this physician may
well assist the veteran in establishing one or both of his
psychiatric claims. Thus, after obtaining the appropriate
release from the veteran, the RO must make reasonable efforts
to obtain these records.
In addition, the Board notes that during the pendency of this
appeal, on March 3, 2006, the United States Court of Appeals
for Veterans Claims (Court) issued a decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, Nos. 01-
1917 and 02-1506, which held that the VCAA notice
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) apply to all five elements of a service connection
claim, including the degree of disability and the effective
date of an award. In the present appeal, the veteran was
provided with notice of what type of information and evidence
was needed to substantiate his claims for service connection,
but he was not provided with notice of the type of evidence
necessary to establish a disability rating or effective date
for the disabilities on appeal. Thus, the RO must send the
veteran a letter containing the relevant Dingess/Hartman
information.
The foregoing letter must instruct the veteran to submit all
evidence in his possession that is relevant to the issues on
appeal.
Finally, the supplemental statement of the case issued
following this remand must contain the full texts of
38 C.F.R. § 3.159 and of 38 C.F.R. § 3.156.
Accordingly, the case is REMANDED to the RO via the AMC for
the following action:
1. The RO must associate with the
claims file treatment records from the
Pittsburgh VAMC dated from January 1,
2000 to the present.
2. After obtaining the necessary
release, the RO must make reasonable
efforts to obtain medical treatment
records from Dr. A. Parikh, M.D. in
Fairlawn, Ohio.
3. The RO must send the veteran notice
of the type of evidence necessary to
establish a disability rating or
effective date for the disabilities on
appeal in accordance with
Dingess/Hartman. The notice must also
instruct the veteran to supply all
evidence in his possession that is
relevant to the issues on appeal.
4. Finally, following completion of
the requested development, the RO
should readjudicate the claims. If any
benefit sought on appeal remains
denied, the veteran and his
representative should be provided a
Supplemental Statement of the Case. It
must contain notice of all relevant
actions taken on the claim for
benefits, to include a summary of the
evidence and applicable law and
regulations, to include the full texts
of 38 C.F.R. § 3.156 and 38 C.F.R.
§ 3.159, considered pertinent to the
issues currently on appeal. An
appropriate period of time should be
allowed for response thereto.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2005).
_________________________________________________
J. A. MARKEY
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).